Cook et al v. The Coca-Cola Company et al

Filing 72

SUGGESTION OF REMAND - Pursuant to Rule 10.1(b) of the Rules of Procedure of the United States Judicial Panel on Multidistrict Litigation, the undersigned transferee judge submits the ATTACHED WRITTEN SUGGESTION OF REMAND, recommending that the Panel remand the cases listed therein to the indicated courts of proper jurisdiction (the "transferor courts"), and providing information of potential assistance to the transferor courts. Respectfully submitted by Judge Dora Lizette Irizarry on 7/10/2013. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------x
IN RE GLACEAU VITAMINWATER
:
MARKETING AND SALES PRACTICE
:
LITIGATION
:
---------------------------------------------------------x
SCOTT COOK, individually and
:
on behalf of those similarly situated, and
:
NICHOLAS ARMADA,
:
:
Plaintiffs,
:
:
-against:
:
THE COCA-COLA COMPANY, and
:
ENERGY BRANDS, INC.,
:
:
Defendants.
:
---------------------------------------------------------x
VIVIAN E. ST. JUSTE, TASHA M.
:
JOHNSON, JACKLYN FRANCIS,
:
MICHELLE WOODLEY,
:
ANGELINA FEOLA, and JOHN FEOLA,
:
:
Plaintiffs,
:
:
-against:
:
THE COCA-COLA COMPANY,
:
ENERGY BRANDS, INC., COCA-COLA
:
BOTTLING CO. OF THE VIRGIN ISLANDS, :
CULUSVI, INC. D/B/A COST-U-LESS,
:
PSMT, LLC DBA PRICESMART, and
:
WORLD FRESH MARKET, LLC,
:
:
Defendants.
:
---------------------------------------------------------x

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SUGGESTION OF REMAND
11-md-2215 (DLI) (RML)

11-cv-00925 (DLI) (RML)

11-cv-00926 (DLI) (RML)

---------------------------------------------------------x
DAVID VOLZ, and
:
TIM VANDERCOOK,
:
:
Plaintiffs,
:
:
-against:
:
COCA COLA COMPANY, and
:
ENERGY BRANDS INC.,
:
:
Defendants.
:
---------------------------------------------------------x
AHMED KHALEEL, individually and
:
on behalf of those similarly situated,
:
:
Plaintiff,
:
:
-against:
:
COCA COLA COMPANY, and
:
ENERGY BRANDS INC.,
:
doing business as GLACEAU,
:
:
Defendants.
:
---------------------------------------------------------x

11-cv-00927 (DLI) (RML)

11-cv-00996 (DLI) (RML)

DORA L. IRIZARRY, United States District Judge:
On February 8, 2011, the Judicial Panel on Multidistrict Litigation (the “Panel”)
designated this Court as the transferee court for federal cases alleging deceptive labeling and
marketing of defendants’ product, “vitaminwater.” There are no pending federal claims in any of
the consolidated cases. Pursuant to Rule 10.1(b) of the Rules of Procedure of the United States
Judicial Panel on Multidistrict Litigation, the undersigned transferee judge submits this
Suggestion of Remand, recommending that the Panel remand the cases listed below to the
indicated courts of proper jurisdiction (the “transferor courts”), and providing information of
potential assistance to the transferor courts.

-2-

I.

Procedural History
In January 2009, plaintiff Batsheva Ackerman (“Ackerman”), a New York resident,

commenced a purported class action in this district, alleging the deceptive labeling and
marketing of vitaminwater, which defendants promote as a “nutrient-enhanced water beverage.”
On May 26, 2009, Ackerman filed an amended complaint, adding as named plaintiffs Ruslan
Antonov, James Koh, and Jerrad Pelkey,1 all California residents, and contending, inter alia, that
defendants’ alleged deceptive practices violate California and New York consumer protection
laws.2
On June 22, 2009, defendants moved to dismiss the complaint on the grounds of federal
preemption and failure to state a claim. On July 21, 2010, after full briefing and oral argument,
this Court granted in part and denied in part defendants’ motion. See Ackerman v. Coca–Cola
Co., No. 09 CV 0395, 2010 WL 2925955 (E.D.N.Y. July 21, 2010).3 On August 27, 2010,
defendants answered plaintiffs’ Second Amended Complaint.
In November 2010, with the Ackerman plaintiffs’ support, defendants moved the Panel
for pre-trial consolidation of this case with two other vitaminwater cases: one that was filed in

1

By stipulation dated March 15, 2010, Mr. Pelkey voluntarily dismissed his claims with
prejudice.
2

Upon learning of defendants’ intent to seek MDL consolidation in the Northern District of
California, the California plaintiffs voluntarily dismissed their three separate cases, which were
then pending in the Northern and Eastern Districts of California, and joined the existing
Ackerman case in this Court. Thus, in September 2009, the Panel denied defendants’ motion for
pretrial consolidation in the Northern District of California. In October 2009, plaintiffs again
amended their complaint to, inter alia, add as named plaintiffs two New Jersey residents, as well
as the claim that defendants’ practices violated New Jersey law. The New Jersey plaintiffs are
no longer involved in this action.
3

The Court identified the open question in this case as whether a reasonable consumer would
find vitaminwater’s labeling and marketing misleading or deceptive under state law. Ackerman,
2010 WL 2925955, at *16.
-3-

the Southern District of Florida and a second that was filed in the Superior Court of the Virgin
Islands and then removed to federal court. On February 8, 2011, the Panel granted that motion
pursuant to 28 U.S.C. § 1407 and transferred the Florida and Virgin Islands cases to this Court
for coordinated or consolidated pre-trial proceedings. On February 25 and March 2, 2011, the
Panel granted defendants’ request for transfer of two additional vitaminwater cases: one from the
Northern District of Illinois and one from the Southern District of Ohio that had been removed
from Ohio state court. The Florida, Virgin Islands, Illinois, and Ohio plaintiffs all have opposed
consolidation.
Once the cases were consolidated, all the parties agreed to be bound by a Stipulated
Protective Order, originally entered on December 3, 2010. The parties also agreed to a case
management order and proceeded to engage in extensive discovery related to class certification,
including the depositions of the named plaintiffs and the exchange of expert reports. The parties
fully litigated several discovery disputes in this Court, each of which has been resolved.4
The parties completed briefing of plaintiffs’ motions for class certification in September
2012, and the Court heard oral argument on October 11, 2012.5

(See Transcript of Oral

Argument, dated Oct. 11, 2012 (“Tr.”), ECF No. 131.) The parties have since filed numerous
supplemental submissions regarding class certification.
Having reviewed the parties’ submissions thoroughly and having considered their
arguments carefully, this Court concludes that the transferor courts would be uniquely wellsuited to rule on the issues presented in the class certification motions, and that resolving those

4

This Court has made a significant number of rulings throughout the course of this MDL. This
Order does not attempt to mention or detail all of those rulings, or suggest the extent to which
any particular ruling is applicable to future proceedings in these cases.

5

Oral argument took place before United States Magistrate Judge Robert M. Levy, to whom the
class certification motions were referred for a report and recommendation.
-4-

issues in this Court would not advance the efficiencies sought by the Panel. Many of the issues
require an interpretation or analysis of state law, which, in some instances, is unsettled. Indeed,
all of the claims in these cases arise under state law, and conduct that would justify class
certification under one state’s consumer protection law may, or may not, support class
certification under another state’s law.
DISCUSSION
I.

Pending Motions For Class Certification
As background, the plaintiffs collectively identify the “central issue” in this case as

“whether Defendants’ uniform labeling of vitaminwater products – including the name
‘vitaminwater’ – is deceptive to a reasonable consumer.” (Master Mem. of Law in Support of
Pls.’ Motion for Class Certification, dated June 29, 2012, ECF No. 71, at 1–2.)

More

specifically, plaintiffs contend that:
Defendants deceptively promote vitaminwater as an alternative
beverage to water and soft drinks that will assist consumers in
maintaining healthy dietary practices.
The product name
(vitaminwater), description (Nutrient Enhanced Water Beverage),
and slogans such as “vitamins+water=all you need” and
“vitamins+water=what’s in your hand” that appear on all
vitaminwater labels,6 together with flavor names that are
associated with specific purported health benefits, mislead
consumers to believe that vitaminwater is simply water fortified
with nutrients that will provide certain stated health benefits rather
than just another sugary soft drink.
(Id. at 2–3.)

6

The name “vitaminwater” appeared on the label of every vitaminwater product sold to
consumers during the relevant class periods, as did the description of vitaminwater as a “Nutrient
Enhanced Water Beverage.” (Stipulation of Certain Marketing Statements, dated Feb. 17, 2012,
Ex. B, ECF No. 50.) The phrase “vitamins+water =what’s in your hand” appeared on
vitaminwater product labels until 2004. (Id.) It appears that the phrase “vitamins + water = all
you need” only appeared on certain flavors.
-5-

It is undisputed that all vitaminwater bottles have a three–part label. The left panel
discloses each product’s sugar and vitamin content, among other information, and the right panel
contains the ingredient list, which also discloses the amount of sugar and the various included
vitamins for each flavor. (See Nesser Decl., Ex. B.) Plaintiffs do not claim that any of the
ingredient or nutritional information on the vitaminwater labels has ever been inaccurate or
incomplete.
In its decision on defendants’ motion to dismiss, this Court stated that “[t]he fact that the
actual sugar content of vitaminwater was accurately stated in an FDA–mandated label on the
product does not eliminate the possibility that reasonable consumers may be misled.”
Ackerman, 2010 WL 2925955, at *16. The Court explained that “the presence of a nutritional
panel, though relevant, does not as a matter of law extinguish the possibility that reasonable
consumers could be misled by vitaminwater’s labeling and marketing” and that “even reasonable
consumers may not read the nutritional label prior to every purchase of a new product.” Id.
All of the plaintiffs have moved for class certification, which of course necessitates an
analysis of each of the threshold requirements of Rule 23(a):
(1) the class is so numerous that joinder of all members is
impracticable; (2) there are questions of law or fact common to the
class; (3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and (4) the
representative parties will fairly and adequately protect the
interests of the class.
Fed. R. Civ. P. 23(a)(1)–(4). In addition, plaintiffs seeking certification of claims for injunctive
relief pursuant to Fed. R. Civ. P. 23(b)(2) must demonstrate that “the party opposing the class
has acted or refused to act on grounds that apply generally to the class, so that final injunctive
relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R.
Civ. P. 23(b)(2).

Plaintiffs seeking monetary relief, on the other hand, must satisfy the
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prerequisites of both subsection (a) and (b)(3) of Rule 23 by demonstrating that questions of law
or fact common to the members of the proposed class “predominate over any questions affecting
only individual members,” and that a class resolution is “superior to other available methods for
fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).
Whether seeking certification under Rule 23(b)(2) or 23(b)(3),7 the plaintiffs bear the
initial burden of proving that their putative class action meets Rule 23's requirements. Fed. R.
Civ. P. 23. Under the Supreme Court’s recent decision in Wal-Mart Stores, Inc. v. Dukes, 131 S.
Ct. 2541, 2556 (2011), a plaintiff must provide “significant” and “convincing” proof that
satisfies the Rule 23 requirements. Once the plaintiffs have made such a showing, the burden of
proof is on the defendants to demonstrate otherwise. See Myers v. Hertz Corp., 624 F.3d 537,
547 (2d Cir. 2010) (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997));
Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 202–03 (2d
Cir. 2008).
Defendants naturally argue that there is “wide variation in consumer expectations and
understanding” (Defs.’ Mem. of Law in Opposition to Pls.’ Master Motion for Class Cert., dated
Aug. 24, 2012, ECF No. 92, at 2), and that, therefore, plaintiffs’ claims of reliance, causation,
and injury are not susceptible to generalized, class-wide proof.

In response, each of the

purported plaintiff classes maintains that the record demonstrates a uniformity of consumer
experience, and that, under their respective state laws, they need only show that the alleged
misrepresentations would be materially misleading to a reasonable consumer. Thus, the class
certification motions hinge, at least in part, on whether each substantive state law supplies an

7

Where a class is certified pursuant to Rule 23(b)(2), no notification is required for absent class
members; however, such notice is required if certification occurs under subsection (b)(3). Fed.
R. Civ. P. 23(c)(2).
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objective or subjective consumer standard. Other state-specific concerns have been raised as
well.
I will outline each transferor case, and the outstanding state law issues, in turn.
A.

Ohio

The proposed Ohio class consists of all consumers who purchased vitaminwater in the
state of Ohio between June 7, 2007 and the present.8 The Ohio plaintiffs allege claims for
violations of the Ohio Consumer Sales Practices Act (“OCSPA”), Ohio Rev. Code Ann.
§§ 1345.01-1345.13,9 and the Ohio Deceptive Trade Practices Act (“ODTPA”), Ohio Rev. Code
Ann. §§ 4165.01-4165.04, and for unjust enrichment, promissory estoppel, and negligent
misrepresentation under Ohio law.
Plaintiffs bringing class actions under the OCSPA are subject to the statute’s class action
notice requirement. Under the OCSPA, consumers may seek relief in a class action only if the
defendant was sufficiently on notice that its conduct was deceptive or unconscionable under the
statute at the time it committed the alleged acts. Ohio Rev. Code Ann. § 1345.09(B) (West
2012); Marrone v. Phillip Morris USA, Inc., 110 Ohio St. 3d 5, 2006–Ohio–2869, 850 N.E.2d
31, at ¶ 1. Plaintiffs bringing claims on behalf of a class must demonstrate that either: (1) the
alleged violation is an act or practice that was declared to be deceptive or unconscionable by a

8

I note that the Ohio Consumer Sales Practices Act (“OCSPA”) typically does not apply to
consumers who reside outside the state of Ohio. Loreto v. Procter & Gamble Co., 737 F. Supp.
2d 909, 917 (S.D. Ohio 2010). It will be for the transferor court to decide whether to limit the
class accordingly.
9

The OCSPA provides that “[n]o supplier shall commit an unfair or deceptive act or practice in
connection with a consumer transaction.” Ohio Rev. Code Ann. § 1345.02(A) (West 2007).
“Plaintiffs bringing OCSPA claims must allege that the defendant performed an act or omission
that was unfair or deceptive, and that the alleged act ‘impacted [the plaintiffs’] decision to
purchase the item at issue.’” In re Porsche Cars N. Am., Inc., 880 F. Supp. 2d 801, 868 (S.D.
Ohio 2012) (quoting Temple v. Fleetwood Enters., Inc., 133 F. App’x 254, 265 (6th Cir. 2005).
-8-

rule adopted by the Attorney General before the consumer transaction on which the action is
based, or (2) the alleged violation is an act or practice that was determined by a court to violate
the OCSPA and the court’s decision was available for inspection before the transaction took
place. Ohio Rev. Code Ann. § 1345.09(B). The alleged conduct must be “substantially similar”
to an act or practice previously declared to be deceptive under the OCSPA in order for the action
to proceed as a class. Marrone, 110 Ohio St. 3d at ¶ 2.10
Ohio courts have held that, in order to bring a claim on behalf of a putative class, a
plaintiff must identify in his or her complaint the rule or case that satisfies section 1345.09(B)’s
notice requirement. See Johnson v. Microsoft Corp., 155 Ohio App. 3d 626, 2003–Ohio–7153,
802 N.E.2d 712, at ¶ 20 (1st Dist.) (dismissing a plaintiff’s OCSPA class action because she
failed to plead the requisite notice elements under section 1345.09(B)), aff’d on other grounds,
106 Ohio St. 3d 278, 2005–Ohio–4985, 834 N.E.2d 791. If a plaintiff fails to identify a rule or
case in his or her complaint that satisfies section 1345.09(B), dismissal of the claim as a class
action is proper and the plaintiff may proceed in his or her individual capacity. See In re Porsche
Cars N. Am., Inc., 880 F. Supp. 2d 801, 869 (S.D. Ohio 2012); St. Clair v. Kroger Co., 581 F.
Supp. 2d 896, 901 (N.D. Ohio 2008); Volbers–Klarich v. Middletown Mgmt., Inc., 125 Ohio St.

10

Specifically, a claim may be asserted under the OCSPA on behalf of a class of consumers
only:
Where the violation was an act or practice declared to be deceptive
or unconscionable by rule adopted [by the Ohio Attorney General]
before the consumer transaction on which the action is based, or an
act or practice determined by a court of this state to violate section
1345.02, 1345.03, or 1345.031 of the Revised Code and committed
after the decision containing the determination has been made
available for public inspection under division (A)(3) of section
1345.05 of the Revised Code. . . .
Ohio Rev. Code Ann. § 1345.09(B) (West 2012).
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3d 494, 2010–Ohio–2057, 929 N.E.2d 434, at ¶ 33. Federal district court cases cannot supply
the requisite notice under section 1345.09(B). See Kline v. Mortg. Elec. Sec. Sys., No. 3:09 CV
408, 2010 WL 6298271, at *6 (S.D. Ohio Dec. 30, 2010) (“[T]he Court cannot logically
conclude that by referring to decisions of ‘a court of this state,’ the Ohio legislature intended to
allow a federal court sitting in Ohio to define the parameters of ‘deceptive or unconscionable’
practices under Ohio’s Consumer Sales Practices Act.”).
In their complaint, the Ohio plaintiffs do not identify any rule or decision finding the
defendants’ conduct, or similar conduct, deceptive. Rather, they maintain that the OCSPA does
not mandate a pleading requirement, and, in their memoranda of law in support of their motion
for class certification, the Ohio plaintiffs cite two cases that they claim demonstrate prior notice:
Brown v. Am. Health Institute, Franklin App. No. 78 CV 0401926, Ohio Atty. Gen. P.I.F. No.
10000175 (Nov. 5, 1978), and Cordray v. The Dannon Co., Franklin Cty. Common Pleas Court,
No. 10 12-18225, Ohio Atty. Gen. P.I.F. No. 10002919 (Dec. 22, 2010).

According to

defendants, these two case citations do not satisfy OCSPA’s notice requirements. Whether or
not they do, and whether any deficiency could be corrected, is a question best left to the
transferor court, with its superior expertise and familiarity in the application of Ohio law and
precedent.
The other Ohio statute at issue, the ODTPA, proscribes certain “deceptive trade
practices” such as passing off goods or services as those of another and causing likelihood of
confusion or misunderstanding as to the source, sponsorship, approval or certification of goods
or services. Ohio Rev. Code Ann. § 4165.02(A)(1)–(2) (West 2011). Section 4165.03 of the
ODTPA confers standing on a “person who is likely to be damaged by a person who commits a
deceptive trade practice” or a “person who is injured by a person who commits a deceptive trade

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practice.” Id. § 4165.03(A)(1) & (2). Despite this language, there is a split of authority on the
question of consumer standing to bring a claim under the ODTPA. See In re Porsche Cars N.
Am., Inc., 880 F. Supp. 2d at 873–74 (interpreting the ODTPA as prohibiting consumers from
bringing a private cause of action) (citing Dawson v. Blockbuster, Inc., 8th Dist. No. 86451,
2006 WL 1061769, at *4 (Ohio Ct. App. Mar. 16, 2006), cert. denied, 110 Ohio St. 3d 1442,
2006–Ohio–3862, 852 N.E.2d 190 (Ohio 2006)); Bower v. Int’l Bus. Machs., Inc., 495 F. Supp.
2d 837, 843 (S.D. Ohio 2007) (holding that individual consumers have standing under the
ODTPA); Glassner v. R.J. Reynolds Tobacco Co., No. 5:99 CV 0796, 1999 WL 33591006, at *6
(N.D. Ohio June 29, 1999) (explaining that the ODTPA “governs conduct between commercial
entities, not between a commercial entity and a consumer.”). The Ohio Supreme Court has not
ruled on this issue.11 Given the unsettled state of Ohio law, and the fact that this case will return
to Ohio for final resolution at any rate, it would make little sense for this Court to weigh in on
the question of whether an Ohio class may be certified under the ODTPA.
B.

The Virgin Islands

The proposed Virgin Islands class consists of all residents of the United States Virgin
Islands who purchased vitaminwater since its distribution in the Virgin Islands.12 The Virgin
Islands plaintiffs’ claims arise under the Virgin Islands Unfair and Deceptive Trade Practices
Act, V.I. Code Ann. tit. 12A §§ 101–110 (1973), the Virgin Islands Consumer Fraud and

11

In McKinney v. Bayer Corp., 744 F. Supp. 2d 733, 752 (N.D. Ohio 2010), the court certified
this issue to the Ohio Supreme Court, explaining that it was “particularly difficult to discern what
that high Court would do.” However, the plaintiff voluntarily dismissed his ODTPA claim and
the issue never reached to the Ohio Supreme Court.
12

I note, however, that the statute of limitations for claims under the Virgin Islands Unfair and
Deceptive Trade Practices Act is two years. See V.I. Code Ann. tit. 12A § 108(j) (2012) (“An
action under this section must be brought within two years after the occurrence of a violation of
this chapter. . . .”).
-11-

Deceptive Business Practices Act,13 V.I. Code Ann. tit. 12A §§ 301–335 (2006), and Virgin
Islands common law.
“Under the Virgin Islands deceptive trade practices law, ‘no person shall engage in any
deceptive or unconscionable trade practice in the sale . . . of any consumer goods or
services. . . .’” Knox v. Quest Diagnostics, Inc., No. 2006–97, 2012 WL 426726, at *5 (D.V.I.
Feb. 10, 2012) (quoting Island Insteel Sys. v. Waters, 296 F.3d 200, 212 (3d Cir. 2002) (citing
V.I. Code Ann. tit. 12A § 101)). In non-class actions, a consumer who suffers a loss as a result
of a violation of § 101 may recover actual damages or $250, whichever is greater. V.I. Code
Ann. tit. 12A § 108(b). However, under § 108(c), “[w]hether a consumer seeks or is entitled to
recover damages or has an adequate remedy at law, he may bring a class action for declaratory
judgment, an injunction, and appropriate ancillary relief, except damages, against an act or a
practice that violates this chapter.” V.I. Code Ann. tit. 12A § 108(c) (emphasis added).14 The
statute also requires a showing of an impact on the public interest. See Four Winds Plaza Corp.
v. Caribbean Fire & Assocs., Inc., No. 2005-201, 2007 WL 1795734, at *2 (D.V.I. Apr. 18,
2007) (citing V.I. Code Ann. tit. 12A, § 108).

13

This statute expressly provides that courts construing it must give consideration to case law
interpreting the Federal Trade Commission Act, 15 U.S.C. § 45:
It is unlawful for any person to engage in unfair methods of
competition or unfair or deceptive trade acts or practices in the
conduct of any trade or commerce. In construing this chapter,
consideration must be given to the interpretations of the Federal
Trade Commission and the federal courts relating to 15 U.S.C. 45
at the time of enactment of this chapter.
V.I. Code Ann. § 304.
14

It thus appears that the purported Virgin Islands class would only be entitled to declaratory
and injunctive relief under this statute.
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As the Virgin Islands plaintiffs note, the Supreme Court of the Virgin Islands first started
issuing opinions in 2007. See History of the Court, Supreme Court of the United States Virgin
Islands,

http://www.visupremecourt.org/Know_Your_Court/History_of_the_Court/index.asp

(last visited July 10, 2013). Therefore, the Virgin Islands does not have a large body of
precedent, and, to date, there has not been one opinion on class certification. Nor is there any
case law interpreting the Virgin Islands Unfair and Deceptive Trade Practices Act so as to
indicate whether individual reliance is a necessary element of a consumer protection claim,15 or
whether deceptive labeling of a beverage would satisfy the “impact on the public interest”
requirement. In other words, this case appears to raise issues of first impression under Virgin
Islands law.

The Virgin Islands plaintiffs, therefore, have proposed certifying unspecified

questions of law to the Virgin Islands Supreme Court.16

15

The statute defines a “deceptive trade practice” as “any false or misleading oral or written
statement, visual description or other representation of any kind made in connection with the
same of consumer goods or services which has the capacity, tendency or effect of deceiving or
misleading consumers.” V.I. Code Ann. tit. 12A § 102(a). According to the Virgin Islands
plaintiffs, this is an objective “reasonable consumer” standard. (Tr. at 137.) However, there is
no case law interpreting this section of the statute in the class action context or otherwise.
16

Where the outcome of a suit in federal court turns on an unresolved issue of local law, the
United States Supreme Court has encouraged federal courts to seek guidance from the highest
court of the appropriate jurisdiction, if that court has adopted procedures for accepting certified
questions of law. See Lehman Bros. v. Schein, 416 U.S. 386, 390–91 (1974). See also Banks v.
Int’l Rental & Leasing Corp., 680 F.3d 296, 299 (3d Cir. 2012) (certifying unsettled question of
local law to the Virgin Islands Supreme Court).
The Supreme Court of the Virgin Islands has adopted rules establishing a procedure to
decide certified questions of Virgin Islands law. See V.I. S. Ct. R. 38.
The Supreme Court of the Virgin Islands may answer questions of
law certified to it by a court of the United States if there is
involved in any proceeding before the certifying court a question
of law which may be determinative of the cause then pending in
the certifying court and concerning which it appears there is no
controlling precedent in the decisions of the Supreme Court.
While answering a certified question is not an adjudicative
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Defendants object to certification and argue that the Virgin Islands plaintiffs cannot
satisfy the elements of Rule 23. However, whether the Virgin Islands plaintiffs can satisfy the
requirements of local law, and whether certification is advisable in order to reach that
determination, are questions best left to the transferor court. See Conner v. Alfa Laval, Inc., 842
F. Supp. 2d 791, 794 n.4 (E.D. Pa. 2012) (“When state law is unsettled and the Court is unable to
predict its resolution with reasonable certainty, the Court typically remands to the transferor
court for a ruling under the particular state’s law.”)
C.

Florida

The purported Florida class consists of all Florida residents who purchased vitaminwater
at any time during the applicable statute of limitations. The Florida plaintiffs bring their claims
under the Florida Deceptive and Unfair Trade Practices Act (the “FDUTPA”), Fla. Stat. §
501.202. “[A] consumer claim for damages under FDUTPA has three elements: (1) a deceptive
act or unfair practice; (2) causation; and (3) actual damages.” Rollins, Inc. v. Butland, 951 So.
2d 860, 869 (Fla. Dist. Ct. App. 2006) (citing Chicken Unlimited, Inc. v. Bockover, 374 So. 2d
96, 97 (Fla. Dist. Ct. App. 1979)).
According to the Court of Appeals for the Eleventh Circuit, the FDUTPA does not
require individualized proof of subjective reliance. See Fitzpatrick v. Gen. Mills, Inc., 635 F. 3d
1279, 1283 (11th Cir. 2011) (explaining that a plaintiff asserting a FDUTPA claim “need not
show actual reliance on the representation or omission at issue”) (citation omitted); see also State
v. Commerce Commercial Leasing, LLC, 946 So. 2d 1253, 1258 (Fla. Dist. Ct. App. 2007) (“A

function, this Court possesses the inherent power to answer
certified questions as the highest local court in this jurisdiction.
Banks v. Int’l Rental & Leasing Corp., 55 V.I. 967, 972 (2011) (citing the Rules of the Virgin
Islands Supreme Court, V.I. S. Ct. R. 38(a).)
-14-

deceptive or unfair trade practice constitutes a somewhat unique tortious act because, although it
is similar to a claim of fraud, it is different in that, unlike fraud, a party asserting a deceptive
trade practice claim need not show actual reliance on the representation or omission at issue.”)
(quotation omitted); Davis v. Powertel, Inc., 776 So. 2d 971, 973 (Fla. Dist. Ct. App. 2000) (“A
party asserting a deceptive trade practice claim need not show actual reliance on the
representation or omission at issue.”).
Thus, in Fitzpatrick, the court upheld class certification for claims about the alleged
digestive health benefits of Yo-Plus yogurt. The court held that, under the FDUTPA, “‘whether
that allegedly deceptive conduct would deceive an objective reasonable consumer [was a]
common issue[ ] for all the putative class members, amenable to classwide proof.’” Fitzpatrick,
635 F.3d at 1283 (quoting Fitzpatrick v. General Mills, Inc., 263 F.R.D. 687, 699 (S.D. Fla.
2010)). It went on to explain that, “should the class prevail on the liability issue, each putative
class member would only need to show that he or she paid a premium for YoPlus to be entitled
to damages under the FDUTPA.” Id.
However, there appears to be a split in the Florida courts regarding the interaction of the
reliance and causation elements of an FDUTPA claim, and some Florida courts have required
that plaintiffs present individualized proof in order to satisfy the FDUTPA’s causation element.
See, e.g., Miami Auto. Retail, Inc. v. Baldwin, 97 So. 3d 846, 857 (Fla. Dist. Ct. App. 2012)
(noting that the “FDUTPA requires proof of each individual plaintiff’s actual (not consequential)
damage and defendant’s causation of damage”); Rollins, Inc., 951 So. 2d at 871–75 (reversing
the trial court’s certification of a class of purchasers of termite-extermination services and
finding that class-wide proof of causation would be impossible; rejecting plaintiff’s argument
that the “diminished market value” of the service due to false advertising could be proven on a

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class-wide basis); Hutson v. Rexall Sundown, Inc., 837 So. 2d 1090, 1092–93 (Fla. Dist. Ct.
App. 2003) (holding that the typicality requirement was not satisfied where some putative class
members had no FDUTPA claims because they were not deceived and, therefore, suffered no
damages).17
The Florida Supreme Court has not addressed this issue directly, but at least one federal
court recently disagreed with Fitzpatrick’s interpretation of the FDUTPA on the ground that
“causation typically requires individualized proof.” In re Sears, Roebuck & Co. Tools Mktg. &
Sales Practices Litig., Nos. 05 C 4742, 05 C 4744, 2012 WL 1015806, at *10 (N.D. Ill. Mar. 22,
2012).18 Rather than engage in the risky exercise of predicting whether the Florida Supreme

17

The defendants also rely heavily on Tire Kingdom, Inc. v. Dishkin, 81 So. 3d 437, 446-47
(Fla. Dist. Ct. App. 2011). (See Defs.’ Mem. of Law in Opposition to Florida Pls.’ Motion for
Class Certification, dated Aug. 2012.) I note that the decision in Dishkin was quashed by the
Florida Supreme Court in Soper v. Tire Kingdom, Inc., __So. 3d __, 2013 WL 264441, 38 Fla.
L. Weekly S37 (Fla. Jan 24, 2013), on grounds unrelated to an interpretation of the FDUPTA,
and is no longer good law.
18

The court in Sears distinguished Fitzpatrick from the case before it – which involved
“thousands of different Craftsman tools” and many different advertisements – on the ground that
“Fitzpatrick involved one product, Yo–Plus, and the allegedly false claim that Yo–Plus had a
unique digestive health benefit was ‘communicated in one way or another to every purchaser of
Yo–Plus in Florida.’” Sears, 2012 WL 1015806, at *10 (quoting Fitzpatrick v. Gen. Mills, Inc.,
263 F.R.D. 687, 694 (S.D. Fla. 2011)). Nevertheless, it concluded that:
It is our view that the Florida Supreme Court would take the same
approach as recent Florida appellate court decisions and require a
plaintiff to show that the alleged misrepresentation actually caused
him harm. To do otherwise in the name of the general principle
that the FDUTPA does not require reliance would, in effect,
remove its causation requirement. Each plaintiff in [the] putative
class will have to show that the alleged “Made in USA”
misrepresentation caused him or her damage, which would
necessitate individualized proof. Accordingly, the proposed
Florida class suffers from the same problems we previously
identified. It is overbroad because it contains a great many
individuals who were not deceived and could not have been
injured, and plaintiff has not shown that his claim is typical of
those of the putative class. In addition, individual questions of
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Court would adopt the approach of Fitzpatrick or that of Sears, this Court finds that this issue is
best left to the transferor court, with superior expertise and familiarity in the application of
Florida law.19
D.

Illinois

The Illinois class consists of all Illinois residents who purchased vitaminwater at any time
from December 2007 to the present. The Illinois class brings its claims under the Illinois
Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 Ill. Comp. Stat. Ann.,
505/2 (1993), which makes it unlawful to use deception or fraud in the conduct of trade or
commerce,20 and for unjust enrichment under Illinois law.
The ICFA provides a right of action for a person who suffers “actual damage” as a result
of a violation. 815 Ill. Comp. Stat. Ann. 505/10a(a). The actual damage element of a private
ICFA action requires that the plaintiff suffer “actual pecuniary loss.” Mulligan v. QVC, Inc.,
888 N.E.2d 1190, 1197 (Ill. App. Ct. 2008). Actual loss may occur if the seller’s deception

causation will continue to predominate despite the FDUTPA’s lack
of a reliance requirement.
Id. at *11.
19

Whether or not it would be advisable to certify this question to the Florida Supreme Court is
also an issue best reserved for the transferor court.
20

The statute provides:
Unfair methods of competition and unfair or deceptive acts or
practices, including but not limited to the use or employment of
any deception, fraud, false pretense, false promise,
misrepresentation or the concealment, suppression or omission of
any material fact, with intent that others rely upon the
concealment, suppression or omission of such material fact, or the
use or employment of [specified practices] in the conduct of any
trade or commerce are hereby declared unlawful . . . .”

815 Ill. Comp. Stat. Ann. 505/2 (footnotes omitted).
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deprives the plaintiff of “the benefit of her bargain” by causing her to pay “more than the actual
value.” Id. at 1197–98.21
It is well-established that a claim under the ICFA contains five elements: “(1) a deceptive
act or practice by the defendant, (2) the defendant’s intent that the plaintiff rely on the deception,
(3) the occurrence of the deception in the course of conduct involving trade or commerce, and
(4) actual damage to the plaintiff (5) proximately caused by the deception.” Avery v. State Farm
Mut. Auto. Ins. Co., 835 N.E.2d 801, 856 (Ill. 2005) (citation omitted). Furthermore, “in a case
alleging deception under the [Consumer Fraud] Act, it is not possible for a plaintiff to establish
proximate causation unless the plaintiff can show that he or she was, ‘in some manner, deceived’
by the misrepresentation.” Id. at 861 (citation omitted). “Satisfaction of this element requires
individualized proof.” Clark v. Experian Information Solutions, Inc., 256 Fed. App’x 818, 821
(7th Cir. 2007) (upholding denial of class certification because of the need for individualized
findings under the IFCA).22
In Oshana v. Coca–Cola Co., 472 F.3d 506 (7th Cir. 2006), the court considered and
rejected the argument that per se deceptiveness absolves a plaintiff from making individualized
proof of proximate cause under the ICFA. See id. at 513–15. It also concluded that a class of

21

In Mulligan, defendant QVC listed its actual sales prices next to substantially higher but
allegedly fictitious “retail values,” creating the false impression that customers were getting a
better deal than they really were. Mulligan, 888 N.E.2d at 1192-93. A customer lured in by this
comparative pricing sued QVC under the ICFA, but the Illinois Appellate Court concluded that
she had not suffered actual damages. The plaintiff “agreed to purchase . . . items for a certain
price” and could not show “that the value of what she received was less than the value of what
she was promised.” Id. at 1197.
22

The plaintiffs in Clark claimed that an online credit protection service concealed the need to
timely cancel long-term contracts if a subscriber wished to discontinue service. The court held
that, while the notice was not prominently displayed, there was some disclosure on the Internet
website, necessitating individual proofs of deceptiveness, reliance and damages under the ICFA.
Clark, 256 Fed. App’x at 822-23.
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consumers who bought fountain Diet Coke was not ascertainable. Id. at 514–15 (citing 815 Ill.
Comp. Stat. 505/10a; Oliveira v. Amoco Oil Co., 776 N.E.2d 151, 160 (Ill. 2002)). See also
Siegel v. Shell Oil Co., 612 F.3d 932, 935–36 (7th Cir. 2010) (individualized inquiries regarding
“why a particular plaintiff purchased a particular brand of [the product]” were necessary to
establish harm to each class member under the ICFA and, thus, common issues could not
predominate); Lipton v. Chattem, No. 11-C-2952, 2013 WL 489147, at *5 (N.D. Ill. Feb. 8,
2013) (deceptive labeling and resulting damages could not be proved on a classwide basis where
proposed class included individuals who were not deceived, or were deceived but would have
purchased the product anyway); Korsmo v. Am. Honda Motor Co., No. 11 C 1176, 2012 WL
1655969, at *5 (N.D. Ill. May 10, 2012) (allegedly misleading and deceptive use of the phrase
“Honda Certified Used Cars” did not support class certification because “individual inquiries
would be necessary to determine each buyer’s motivations for buying a Honda Certified Used
Vehicle and which buyers, if any, were deceived by the use of the phrase[.]”); Kitzes v. Home
Depot U.S.A., Inc., 872 N.E.2d 53, 61-62 (Ill. App. Ct. 2007) (denying class certification on the
ground that individual inquiries were necessary to identify whether proposed class members
actually purchased the product at issue from Home Depot); Barbara’s Sales, Inc. v. Intel Corp.,
879 N.E.2d 910, 927 (Ill. App. Ct. 2007) (explaining that plaintiffs in a class action brought
under the ICFA must prove that “each and every consumer who seeks redress actually saw and
was deceived by the statements in question” and reversing class certification because the
plaintiffs could not demonstrate that they were, as a class, deceived by defendants’
representations concerning their computers).
The Illinois plaintiffs reject the notion that individual reliance is a necessary element of
their ICFA claim. In fact, Illinois courts have certified classes asserting violations of the ICFA,

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where the defendant engaged in “uniform” conduct toward the class, and the successful
adjudication of the named plaintiff’s claims would establish a right to recovery for all class
members. See, e.g., S37 Mgmt., Inc. v. Advance Refrigeration Co., 961 N.E.2d 6, 16 (Ill. App.
Ct. 2011) (defendant’s uniform collection of a “government processing” charge in every invoice
justified class certification); P.J.’s Concrete Pumping Serv., Inc. v. Nextel W. Corp., 803 N.E.2d
1020, 1030 (Ill. App. Ct. 2004) (“The primary factual issue in this case is a uniform billing
practice that allegedly violated the Consumer Fraud Act in the same manner as to all class
members. The propriety of such a uniform practice is amendable to being resolved in a class
action.”). See also Phillips v. Ford Motor Co., No. 99-L-1041, 2003 WL 23353492, at *5 n.7
(Ill. Cir. Ct. Sept. 15, 2003) (explaining that, although causation is one of the elements of a claim
under the ICFA, there is no mandate “that every attempt to certify a consumer fraud class must
fail due to the need for individualized proximate cause hearings” and “innumerable ICFA class
actions have been certified (and upheld) without requiring individualized showings of proximate
causation.”) Moreover, courts are to liberally construe the ICFA. Connick v. Suzuki Motor Co.,
675 N.E. 2d 584, 594 (Ill. 1996).
In short, whether or not the alleged misrepresentations in this case were sufficiently
uniform to satisfy Illinois law is a question best reserved for the transferor court.
II.

Pending Motions Regarding Expert Reports
The plaintiffs have moved to exclude the expert reports of Stephen G. Swisdak, Carol A.

Scott, Ph.D., and Elizabeth Applegate, Ph.D., submitted in opposition to plaintiffs’ motions for
class certification.

Mr. Swisdak is a historian who was asked to conduct research into

“knowledge widely available to the public in certain media areas concerning the sugar content,

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calorie content, and recommended serving size of vitaminwater.”23

(See Expert Report of

Stephen G. Swisdak, attached as Ex. N to the Declaration of Isaac Nesser, Esq., dated Aug. 24,
2012 (“Nesser Decl.”).) Dr. Scott is an expert on consumer surveys, who was asked to conduct
research into commercial information about vitaminwater and consumers’ reasons for purchasing
it.24 (See Expert Report of Carol A. Scott, Ph.D., attached as Ex. L to the Nesser Decl.) Dr.
Applegate is an expert on nutrition and is a tenured faculty member at the University of
California, Davis.25 (See Expert Report of Elizabeth Applegate, Ph.D., attached as Ex. K to the
Nesser Decl.) Whether or not these reports are relevant to the motions for class certification, or
should be excluded for other reasons,26 can be determined by each of the transferor courts.
CONCLUSION
In sum, the pending motions confirm that a suggestion of remand is appropriate at this
time. While the substance of the motions undeniably overlaps in some respects, the motions
raise many case specific state law issues, which can best be resolved by courts in the states where

23

In his report, Mr. Swisdak concludes that, in his “expert historical opinion,” the “average
consumer had multiple opportunities, through multiple media formats in both national and local
media sources, to be exposed to information about the sugar and caloric content of vitaminwater,
as well as the fact that a bottle of vitaminwater contained 2 ½ servings. (Nesser Decl., Ex. N.)

24

Dr. Scott’s survey sought to determine why consumers purchase vitaminwater, what attributes
about the product are most important to them, and consumers’ perceptions of marketing on the
label and in other promotional materials. The survey also obtained information on vitaminwater
pricing and consumers’ awareness of the prevalence of vitaminwater advertising on television,
magazines, newspapers, and on social media such as Facebook. (Nesser Decl., Ex. L.)
25

Dr. Applegate offers the opinions that: (1) the “majority of individuals seeking healthier food
and beverage choices utilize the Nutrition Facts Panels and ingredients lists on product labels,”
and (2) notions of what is “healthy” vary, and what can be healthy for one person might not be
for another. (Nesser Decl., Ex. L.)
26

Plaintiffs’ primary argument, at least with respect to Dr. Scott, is that this expert evidence
goes to the merits of this case and should not be considered on a motion for class certification. If
the Court intends to consider it, plaintiffs request further discovery. (See, e.g., Tr. at 170–80.)
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plaintiffs’ claims arose.27 The fact that the plaintiffs’ claims have some degree of commonality
is not a sufficient reason to keep the tag-along actions here. This Court does not believe it has
obtained “any particular expertise . . . from supervising this litigation” that would render it more
capable than the transferor courts of disposing of the pending motions. See In re Air Crash
Disaster Near Dayton, Ohio, 386 F. Supp. 908, 909 (J.P.M.L. 1975) (per curiam); accord, e.g., In
re King Res. Co. Sec. Litig., 458 F. Supp. 220, 221 (J.P.M.L. 1978) (per curiam).
Moreover, while the pending motions for class certification have been fully briefed and
argued, “it is not contemplated that a Section 1407 transferee judge will necessarily complete all
pre-trial proceedings in all actions transferred and assigned to him [or her] by the Panel.” In re
State St. Bank & Trust Co. Fixed Income Funds Inv. Litig., MDL No. 1945, 2011 WL 1046162,
at *4 (S.D.N.Y. Mar. 22, 2011) (suggesting remand of actions transferred from Texas where
remaining issues involved only application of Texas law.).28

27

The defendants raise numerous additional issues with respect to the plaintiffs’ various state
law claims. This suggestion of remand does not purport to identify all of them.

28

In fact, courts routinely suggest remand even where there are pending dispositive motions,
see, e.g., In re State St., 2011 WL 1046162, at *4–6 (suggesting remand notwithstanding pending
motions for summary judgment); In re Ford Motor Co. Bronco II Prod. Liab. Litig., MDL No.
991, 1998 WL 308013, at *2 & n.11 (E.D. La. June 8, 1998) (same). The Panel has repeatedly
remanded cases under such circumstances. See, e.g., In re Baseball Bat Antitrust Litig., 112 F.
Supp. 2d 1175, 1177 (J.P.M.L. 2000) (remanding cases despite pending motions to dismiss in
transferee court); In re Evergreen Valley Project Litig., 435 F. Supp. 923, 924 (J.P.M.L. 1977)
(per curiam) (same).
-22-

Based on the foregoing, and all the files, records, and proceedings herein, the
undersigned respectfully suggests to the Panel that the below–listed actions be remanded to their
original courts:
Case Name

EDNY Case No.

Transferor Court

Cook, et al. v. Coca-Cola Co., et al.

11-cv-925

S.D. Fla.

St. Juste, et al. v. Coca-Cola Co., et al.

11-cv-926

D. Virgin Islands

Volz, et al. v. Coca-Cola Co., et al.

11-cv-927

S.D. Ohio

Khaleel v. Coca-Cola. Co., et al.

11-cv-996

N.D. Ill.

Dated: Brooklyn, New York
July 10, 2013
_________/s/_____________
DORA L. IRIZARRY
United States District Judge

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